First Amendment Activities Update

August 2002
by Lloyd Jassin

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Lloyd JassinLloyd J. Jassin is PMA’s First Amendment counsel, a vice president of the Media Coalition, and a publishing attorney. He is also coauthor of The Copyright Permission and Libel Handbook (John Wiley & Sons). To contact him, visit www.copylaw.com.


As a Vice President of the Media Coalition and your representative on the Media Coalition’s Board of Directors, I am pleased to provide this report on PMA’s First Amendment activities over the past 12 months.

Along with fellow Media Coalition members–including the American Booksellers Association (ABA), the Association of American Publishers (AAP), the Magazine Publishers of America (MPA), and the National Association of College Stores (NACS)–PMA enjoyed success in several matters. Here’s a recap of our victories and ongoing battles against unconstitutional laws.

Action in the Courts

On May 31, 2002, a Federal Court in Philadelphia ruled that a federal statute requiring so-called Internet filters on any library receiving federal funds violated the First Amendment rights of adult patrons. The Court found that filters block access to significant amounts of constitutionally protected speech.

Also in May, the U.S. Supreme Court, in Ashcroft v. ACLU–a case challenging the Child On-Line Protection Act (COPA)–decided that the community standards aspect of COPA was constitutional. The U.S. Supreme Court sent the case back to the Third Circuit Court of Appeals to determine if other aspects of the law are constitutionally valid. The Coalition argued that the law was over-broad and stifled free speech.

On May 13, 2002, the U.S. Supreme Court, in City of Los Angeles v. Alameda Books, stated that a ban on multiple adult-related businesses under the same roof is constitutional. The case was sent back to the Court of Appeals for further study (or a new trial).

In April 2002, the Colorado Supreme Court overturned a decision requiring the Tattered Cover Bookstore in Denver to turn over information about books purchased by a customer. Their decision said that, in the future, such records could be turned over only after a hearing.

Also in April, a District Judge in Vermont found an Internet harmful to minors statute unconstitutional and permanently enjoined it. That statute was similar to those successfully challenged in New York, New Mexico, Virginia, and Michigan.

On February 19, a harmful to minors Internet statute, challenged in Arizona, was found unconstitutional on First Amendment, Fifth Amendment (unconstitutional vagueness), and Commerce Clause grounds. Plaintiffs included PMA along with the American Booksellers Foundation for Free Expression, the Association of American Publishers, the Freedom to Read Foundation, the National Association of Recording Merchandisers, the Periodical and Book Association of America, the Recording Industry Association of America, the Video Software Dealers Association, PSINet, Inc., and Changing Hands Bookstore.

Another Internet harmful to minors statute challenged in Michigan was permanently enjoined in June 2001. Media Coalition members had submitted an amicus brief. Currently, the Coalition is monitoring the passage of similar Internet harmful to minor laws in Ohio and South Carolina.

Also, PMA joined the Authors Guild, the AAP, PEN American Center, and other organizations on an amicus brief seeking to nullify President Bush’s executive order limiting access to Presidential papers and to order the National Archives to administer the Presidential Records Act of 1978 as Congress intended.

Legislative Action

Significant legislative activity centering on minors’ access to the Internet and other issues of potential importance to PMA members has occurred over the past year. In this connection, the Media Coalition has written letters in opposition to the following state bills:

  • Montana Senate Bill 399, which would impose business licensing requirements on mainstream book, music, and video stores.
  • New York’s “Son of Sam” Law, which would impose restrictions on publishers and authors.
  • Florida Senate Bill 730
  • Florida House Bill 663, bills limiting the sale and rental of video games and addressing use of the ratings of those games.
  • Washington House Bill 2363, another violent video-game bill.
  • California Assembly Bill 1956, a bill requiring video arcade facilities to post a warning about a claimed harm to minors from exposure.
  • South Dakota House Bill 2468, which would make it a petty offense to sell or rent any movie or motion picture with a restricted rating to anyone under 18, unless that person was accompanied by a parent or guardian.

We have also closely monitored bills in Connecticut, Michigan, and Ohio dealing with a wide range of subjects.

As an organization, PMA remains dedicated to the proposition that the best test of truth is the power of an idea to get itself accepted in the marketplace. To that end we will continue to monitor laws that threaten PMA members’ free-speech rights and, when appropriate, file legal challenges and friend of the court briefs in cases involving the First Amendment rights of authors and publishers of constitutionally protected works.

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